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OPINION 


V 

ATTORNEY GENERAL HOAR 


ON THE JURISDICTION OF 

MILITARY COMMISSIONS 


CRIMES COMMITTEE IN TEXAS. 


WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1869. 



















O PI NI () N 


ATTORNEY GENERAL HOAR 


OX THE JUUISDICTIOX OS’ 


MILITARY COMMISSIONS 


OYER 


CRIMES COMMITTED IN TEXAS. 



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WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1869 . 


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Attorney General’s Office, 

May 31, 1869. 

Hon. John A. Rawlins, 

Secretary of War. 

Sir : 

Your letter of March 24, 1869, submitting for 
my opinion, “as to the proper action to be had in the 
premises, the case of James Weaver, a citizen of 
Texas, who was tried before a Military Commission, 
appointed by the commanding general of the 5th 
Military District, under authority of section three 
of the Act of March 2, 1867, ‘to provide for the 
more efficient Government of the Rebel States,’ and 
found guilty of murder and sentenced to be hanged,” 
the record having been forwarded for the action of 
the President, as required by section four of said 
Act, and returned by him to your Department upon 
the first day of February last, without any action 
upon the same, was received on the 26th of March 
last. The grave importance of the question involved 
required such careful and deliberate consideration, 
that, under the pressure of other official duties, I 
have not been able, until this time, to give it suffi¬ 
cient attention. Having now carefully examined 
it, I proceed to state the conclusion to which I have 
arrived. 

From the papers accompanying your letter, it 
appears that James Weaver, a citizen of Bastrop 
County, in Texas, was indicted for murder in that 


4 


county. By request of J. J. Thornton, District 
Judge of the second district in Texas, made to Gen. 
Reynolds, the Commander of the Fifth Military 
District, accompanied by a statement that a trial 
could not probably be had in the State courts, and 
asking that he may be tried by the military, 
authorities, a Military Commission was organized 
at Austin, Texas, before which, on the 17th of 
September, 1868, and days following, Weaver was 
arraigned and tried. He was defended by counsel,, 
was found guilty and sentenced to* be hanged, and 
the question on which you desire my opinion seems 
to be this: Whether the general commanding the 
5th Military District had authority to take a man 
from the civil power, and try him by military law; 
or, in other words, whether a Military Commission, 
in Texas, in September, 1868, had jurisdiction over 
a citizen not in the naval or military service, charged 
with the murder of another citizen, and under indict¬ 
ment and arrest in the State courts therefor. From 
the letter of Judge Thornton to Gen Reynolds, 
above referred to, which is made a part of the 
record in the case, it appears that Weaver was 
under indictment in the District Court for the 
second judicial district of Texas for murder, and 
that the civil courts were so badly situated and 
managed that, if left with them, no trial could 
probably be had. 

Exceptions to the jurisdiction of the Commission 
were filed by Weaver, who objected, first, that he 
was entitled to a trial by jury; secondly, that the 


5 


Constitution of the United States provides that no 
person shall be twice put in jeopardy of life or 
limb for the same offence; that the offence with 
which he was charged belonged entirely to the civil 
.courts of the State of Texas, and that he would 
be unable to plead the finding of the Commission 
in bar in the District Court of Bastrop County; 
thirdly, that before the date of the order conven¬ 
ing the Commission, he was under indictment in the 
civil court, and was under arrest to await trial 
.therein, and that the said indictment for the same 
offence was still pending against him; fourthly, 
because the District Court of Bastrop county was 
fully organized and prepared to pass upon all cases 
brought before it; fifthly, because he, the said 
Weaver, was a citizen not connected with the army 
of the United States, and the deceased was also a 
citizen. These exceptions were overruled by the 
Commission. 

The statute of March 2, 1867, entitled “An Act 
to provide for the more efficient government of the 
Rebel States,” declares in its preamble that no legal 
State governments, or adequate protection for life 
or property, then existed in the Rebel States therein 
enumerated, including among them the State of 
Texas; and that it was necessary that peace and 
good order should be enforced in said States until 
loyal and republican State governments could be 
legally established. It therefore enacted that said 
Rebel States should be divided into military 
districts, and made subject to the military authority 


6 


of the United States, as thereinafter prescribed; 
and that it should be the duty of the President to 
assign to the command of each of said districts an 
officer of the army, and to detail a sufficient military 
force to enable such officer to perform his duties 
and enforce his authority in the district to which 
he was assigned. 

The 3d and 4th sections of said Act are as fol¬ 
lows: 

“Sec. 3. And be it further enacted , That it shall 
be the duty of each officer assigned, as aforesaid, 
to protect all persons in their rights of person and 
property, to suppress insurrection, disorder and 
violence, and to punish or cause to be punished all 
disturbers of the public peace and criminals; and 
to this end he may allow local civil tribunals to 
take jurisdiction of and to try offenders, or, when 
in his judgment it may be necessary for the trial 
of offenders, he shall have power to organize mili¬ 
tary commissions or tribunals for that purpose, and 
all interference under color of State authority with 
the exercise of military authority under this Act 
shall be null and void. 

“Sec. 4. And be it further enacted , That all 
persons put under military arrest by virtue of this 
act, shall be tried without unnecessary delay, and 
no cruel or unusual punishment shall be inflicted, 
and no sentence of any military commission or 
tribunal hereby authorized, affecting the life or 
liberty of any person, shall be executed until it is 
approved by the officer in command of the district; 


7 


and the laws and regulations for the government 
of the army shall not be affected by this act, 
except in so far as they conflict with its provisions: 
Provided , that no sentence of death, under the 
provisions of this act, shall be carried into effect 
without the approval of the President.’’ 

The Act also provided that its provisions should 
become inoperative when the States had adopted 
constitutions approved by Congress, and Senators 
and Representatives were admitted therefrom, and 
that until the people of said States should be by 
law admitted to representation in Congress, any 
civil governments which may exist therein shall be 
deemed provisional only, and in all respects subject 
to the paramount authority of the United States, 
at any time to abolish, modify, control, or supersede 
the same. 

As the State of Texas had not in September, 
1868, and has not since, adopted a constitution in 
conformity with the provisions of the Act, and has 
not become entitled to representation in the Con¬ 
gress of the United States, the Act was operative 
in Texas at the time the Military Commission was 
organized for the trial of Weaver, and the com¬ 
manding general exercised the discretion entrusted 
to him by the third section, by deciding that it was 
necessary for the trial of an offender to organize a 
Military Commission for that purpose. If, there¬ 
fore, this statute of March 2, 1867, is a constitu¬ 
tional and valid statute, it then appears that the 
jurisdiction of the Military Commission was com- 


8 


plete, and that there is no legal obstacle: to the 
execution of its sentence. 

It is obvious, in the first place, that, under the 
Constitution of the United States, Congress has no 
power to subject any citizen of a State to trial and 
punishment by military power in time ' of peace. 
But the power to declare war is, by the Constitu¬ 
tion, expressly vested in Congress. It has also 
power to suppress insurrection, and to make all 
laws necessary and proper for carrying into execu¬ 
tion all the powers vested by the Constitution in 
the Government of the United States, or in any 
department or officer thereof. The power to 
declare war undoubtedly includes, not only the 
right to commence a war, but to recognize its 
existence when commenced by others; to declare 
that there is a war, and thereupon to make pro¬ 
vision for waging war; to determine, so far as the 
nation can assert and enforce its will, how long the 
war shall continue and when peace is restored. 

The Constitution has made no provision in terms 
for a rebellion of the magnitude of that which has 
occurred, involving the destruction of all the legit¬ 
imate and constitutional governments in whole 
♦ States of the Union, and involving a war between 
those States and the National Government. But 
the Constitution is a frame of government, and 
clearly implies the endowment of that government 
with all powers necessary to maintain its own 
existence and the vindication of its authority within 
the scope of its appropriate functions. 


9 


When war was waged upon the United States 
by States of the Union as organized communities, 
Congress could and must recognize the existence of 
that war, and apply itself, by the means belonging 
to war, to the vindication of the national authority, 
the preservation of the national territory, and the 
restoration of a republican government, under the 
National Constitution, in each of the rebellious 
States. As was said by the Supreme Court in the 
Prize Cases, 2 Black, p. 673, “it is a proposition 
never doubted that the belligerent party who claims 
to be sovereign may exercise both belligerent and 
sovereign rights.” The territory possessed by the 
rebels might lawfully and constitutionally be treated 
by the United States as enemies’ territory. In the 
language of the Court in the same case, “all persons 
residing within this territory, whose property may 
be used to increase the revenues of the hostile 
power, are, in this contest, liable to be treated as 
enemies, though not foreigners. 'They have cast 
off their allegiance, and made war on their Govern¬ 
ment, and are none the less enemies because they 
are traitors.” 

Where all lawful governments have been extin¬ 
guished by the rebellion on the theatre of active 
military operations, where war really prevailed, 
there is a necessity to furnish a substitute for the 
civil authority thus overthrown, to preserve the 
safety of the army and society; and as no power 
is left but the military, it is allowed to govern by 
martial rule until the laws can have their free 


10 


course. The right to govern By military law under 
such * circumstances was fully conceded in the 
opinion of the Supreme Court of the United States 
in Ex parte Miligan, 4 Wall, 127. The test is 
there suggested, that the right to govern by military 
power depends upon the fact that the courts are 
actually closed, and that it is impossible to admin¬ 
ister criminal justice according to law. But while 
the war continues, although the military power may 
be the only government in the territory held by 
force of arms, the military commander may make 
use of such local tribunals already existing, as he 
may find it convenient to employ, in subjection to 
his paramount authority. 

It then remains to consider, first, whether the 
State of Texas has been, during the rebellion, so 
deprived of all constitutional and lawful govern¬ 
ment as a State, and so in armed hostility to the 
Government of the United States, as to be subject 
to military law when possession of her territory 
was regained by the military power of ,the United 
States; and secondly, whether the right to hold 
and govern the State by military power, has term¬ 
inated. 

To the first question there can be but one answer. 
In the language of Chief Justice Chase, in Texas 
vs. White et al ., decided at the present term of the 
Supreme Court, “No one has been bold enough to 
contend that while Texas has been controlled by a 
government hostile to the United States, and in 
affiliation with a hostile confederation waging war 


11 


upon the United States, Senators chosen by her 
Legislature or Representatives elected by her citi¬ 
zens, were entitled to seats in Congress, or that any 
suit instituted in her name would be entertained in 
this Court. All admit that, during this condition 
of civil war, the rights of the State as a member, 
and of her people as citizens of the Union, were 
suspended. The government and the citizens of 
the State refusing to recognize their constitutional 
obligations, assumed the character of -enemies, and 
incurred the consequence of rebellion." 

The second question is one of more importance, 
and difficulty. Having suppressed the rebellion, 
so far as it was maintained by an armed force, it 
became the duty of Congress to reestablish the 
broken relations of the State with the Union, and 
the same authority which recognized the existence 
of the war is, in my judgment, the only authority 
having the constitutional right to determine when, 
for all purposes, the war has ceased. The rights 
of war do not necessarily terminate with the cessa¬ 
tion of actual hostilities. I can have no doubt 
that it is competent for the nation to retain the 
territory and the people which have once assumed 
a hostile and belligerent character, “within the 
grasp of war," until the work of restoring the rela¬ 
tions of peace can be accomplished, and that it is 
for Congress, the department of the National Gov¬ 
ernment to which the power to declare war is 
entrusted by the Constitution, to determine when 
the war has so far ended that this work can be 


12 


safely and successfully completed. The Act. of 
Congress of March 2, 1867, is, in my opinion, a 
legislative declaration that, in Texas, the war which 
sprang from the rebellion, is not, to all intents and 
purposes, ended, and that it shall be held to con¬ 
tinue until, in conformity with the legislative will, 
a State government, republican in form and subor¬ 
dinate to the Constitution and laws of the United 
States, for which the Act makes provision, shall 
have been reestablished. 

It is true that, in several acts of Congress, the 
, suppression of the rebellion and the end of the war, 
have, in express terms or by implication, been 
recognized, but it will be found, on examination., 
that these phrases have been used in regard to 
special subjects, which do not seem to me incon¬ 
sistent with the proposition, that, for some purposes, 
the rights of war are not ended. While in respect 
to captured and abandoned property a limitation of 
the right to commence suits in the Court of Clainfrs, 
dating from the end of the rebellion, has been fixed 
by statute, and, for the purpose of settling the 
question of the pay of officers in the volunteer 
army, the date of the President’s Proclamation, 
declaring the insurrection at an end, has been 
adopted to interpret the phrase “close of the war,” 
it does not seem to me inconsistent with either 
of these enactments, that Congress should declare 
that the States whose civil governments have been 
destroyed, should continue under military authority 
until such governments could be restored. 


13 


Every act of Congress is to be presumed to be 
constitutional unless the contrary plainly appears. 
It is to be also presumed that Congress will provide 
for the restoration, through constitutional govern¬ 
ment, of the rebellious States as speedily as, in its 
judgment, public safety will allow; butTintil civil 
authority is restored, and the rights of person and 
property can be protected in the region which has 
been the theatre of war, by organized governments, 
the direction by Congress to employ a military force 
to give that protection and preserve the peace, would 
seem to be the only alternative with anarchy. 

It appears by the papers submitted that the trial 
of Weaver before the Military Commission was 
fairly and carefully conducted, and that the murder 
of which he was convicted was wanton and cruel. 
A freedman who had been at work for Weaver, and 
had chosen to leave his employment to go and work 
for another man, went to him in the field near his 
house in the morning, to ask for the wages which 
were due him. Weaver seized an ox-bow, and beat 
him severely with that. He then sent his hired 
man to his house for a double-barreled gun loaded 
with buckshot, and, on his return with it, shot the 
freedman through the head, killing him instantly. 
There appears to have been neither provocation nor 
resistance. This atrocious act was committed in 
the sight of the wife of the man murdered, who 
stood by her own door. 

The finding of the Commission has been approved 
by the military commander, and has been certified 


14 


to be regular and proper by the Judge Advocate 
General. I find no sufficient reason in law for the 
President’s withholding his approval. The papers 
which were sent to me are returned herewith. 

I have the honor to be, 

Very respectfully, 

Your obedient servant, 

E. R. HOAR, 
Attorney General. 


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